Andrews v. Holder ( 2013 )

11-5449
Andrews v. Holder
BIA
Abrams, IJ
A036 706 672
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 26th
day of August, two thousand thirteen.
PRESENT:
RALPH K. WINTER,
PETER W. HALL,
Circuit Judges,
WILLIAM K. SESSIONS III,*
District Judge.
_____________________________________
CHURCHILL LEONARD SPENCER ANDREWS,
AKA CHURCHILL LENARD ANDREWS,
Petitioner,
v. 11-5449
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
*
The Honorable William K. Sessions III, of the United
States District Court for the District of Vermont, sitting by
designation.
FOR PETITIONER: DAVID J. DEBOLD (Jill M. Pfenning, on
the brief), Gibson, Dunn & Crutcher LLP,
Washington, D.C.
FOR RESPONDENT: CLAIRE L. WORKMAN (Stuart F. Delery,
Acting Assistant Attorney General;
Blair T. O’Connor, Assistant
Director, on the brief), Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DISMISSED IN PART and DENIED IN PART.
Petitioner Churchill Leonard Spencer Andrews, a native
and citizen of Guyana, seeks review of an October 25, 2011,
order of the BIA, denying his motion to reopen his removal
proceedings and affirming the May 10, 2011, decision of
Immigration Judge (“IJ”) Steven R. Abrams, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re
Churchill Leonard Spencer Andrews, No. A036 706 672 (B.I.A.
Oct. 25, 2011), aff’g No. A036 706 672 (Immig. Ct. N.Y. City
May 10, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
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Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008) (internal quotation marks omitted). The applicable
standards of review are well established. See 8 U.S.C. §
1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
2005).
Title 8, Section 1252(a)(2)(C) of the United States
Code provides that no court shall have jurisdiction to
review the final order of removal of an alien who is
removable for having been convicted of an aggravated felony
or controlled substance offense. See also Vargas-Sarmiento
v. U.S. Dep’t of Justice, 448 F.3d 159, 164 (2d Cir. 2006);
Durant v. INS, 393 F.3d 113, 115-16 (2d Cir. 2004).
Nevertheless, we retain jurisdiction to review
constitutional claims and questions of law, including
whether an underlying conviction constitutes an aggravated
felony. See 8 U.S.C. § 1252(a)(2)(D); see also
Vargas-Sarmiento, 448 F.3d at 164.
Following the conclusion of briefing in this case, a
panel of this Court held that a conviction for third-degree
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criminal sale of cocaine under New York Penal Law (“NYPL”) §
220.39 is categorically a drug trafficking aggravated
felony. See Pascual v. Holder, 707 F.3d 403, 405 (2d Cir.
2013). Following oral argument in this case, the panel in
Pascual reconsidered its decision and adhered to its
conclusion that a violation of § 220.39 is categorically a
drug trafficking aggravated felony. See Pascual v. Holder,
__ F.3d __, No. 12-2798 (2d Cir. July 9, 2013) (slip op.).
The petitioner in Pascual then sought en banc review, which
was denied. Accordingly, we hold that, under Pascual,
Andrews’s conviction for fifth-degree criminal sale of
cocaine, in violation of NYPL § 220.31, is also
categorically a drug trafficking aggravated felony and, as
such, Andrews cannot raise a colorable constitutional claim
or question of law concerning the agency’s denial of asylum
and reopening, which were predicated on his corresponding
statutory ineligibility for asylum and cancellation of
removal, respectively. See 8 U.S.C. § 1158(b)(2)(A)(ii),
(B)(i); 8 U.S.C. § 1229b(a)(3), (b)(1)(C). Although the
agency based its denial of asylum and reopening on a finding
that Andrews’s conviction, though not categorically an
aggravated felony, was nevertheless an aggravated felony
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under the modified categorical approach, we need not remand
to the agency for application of Pascual. See Shunfu Li v.
Mukasey, 529 F.3d 141, 150 (2d Cir. 2008) (finding that
remand is futile where the Court can confidently “predict
that the agency would reach the same decision absent the
errors that were made” (internal quotation marks omitted)).
Nor does Andrews’s contention that the agency summarily
found that he was statutorily ineligible for withholding of
removal raise a colorable constitutional claim or question
of law. While a challenge to the agency’s determination
that an alien’s conviction constitutes a particularly
serious crime normally presents a question of law, Nethagani
v. Mukasey, 532 F.3d 150, 154-55 (2d Cir. 2008), “we lack
jurisdiction to review any legal argument that is so
insubstantial and frivolous as to be inadequate to invoke
federal-question jurisdiction,” Barco-Sandoval v. Gonzales,
516 F.3d 35, 40 (2d Cir. 2008). In denying withholding of
removal, the BIA noted that Andrews’s drug trafficking
aggravated felony conviction was presumptively a
particularly serious crime and that Andrews had not
attempted to rebut the presumption. See Matter of Y-L-,
A-G- & R-S-R-, 23 I. & N. Dec. 270, 276 (A.G. 2002)
(“Aggravated felonies involving unlawful trafficking in
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controlled substances presumptively constitute ‘particularly
serious crimes’” and the burden is on applicant to
demonstrate eligibility for withholding of removal.),
overruled on other grounds by Khouzam v. Ashcroft, 361 F.3d
161, 171 (2d Cir. 2004); accord Miguel–Miguel v. Gonzales,
500 F.3d 941, 946-49 (9th Cir. 2007). Andrews’s challenge
to this finding, as cursory and devoid of reasoning, is
frivolous and inadequate to invoke jurisdiction because his
former counsel conceded before the IJ that his conviction
was for a particularly serious crime, Andrews’s motion for
ineffective assistance filed before the BIA acknowledged
that the concession rendered him ineligible for withholding
of removal, and Andrews never attempted to rebut the
presumption at any stage in the proceedings. See
Barco-Sandoval, 516 F.3d at 40.
Lastly, assuming that we retain jurisdiction to
consider Andrews’s challenge to the agency’s denial of
deferral of removal under the CAT, he has failed to identify
reversible error in the agency’s decision. Because torture
cognizable under the CAT must be “inflicted by or at the
instigation of or with the consent or acquiescence of a
public official or other person acting in an official
capacity,” 8 C.F.R. § 1208.18(a)(1), the agency reasonably
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determined that Andrews was not eligible for CAT relief.
Andrews did not contest the IJ’s findings that his cousin
was not acting in his official capacity during their dispute
and that Andrews did not reach out to any governmental
organization to seek assistance with, or protection from his
cousin. See Khouzam, 361 F.3d at 171 (holding that
cognizable acquiescence requires “that government officials
know of or remain willfully blind to an act and thereafter
breach their legal responsibility to prevent it”).
For the foregoing reasons, the petition for review is
DISMISSED IN PART, as it relates to Andrews’s challenges to
the agency’s denial of asylum, withholding of removal, and
reopening of his removal proceedings and DENIED IN PART, as
it relates to Andrews’s challenge to the agency’s denial of
deferral of removal under the CAT.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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